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Court: Judge Erred In Striking Down Voter ID Law

By John Lyon

Arkansas News Bureau

LITTLE ROCK — The state Supreme Court on Wednesday overturned one of two recent lower-court rulings that struck down Arkansas’ voter ID law, saying a circuit judge exceeded his authority in ruling on the law’s constitutionality when that issue was not properly before him.

The high court upheld a portion of the judge’s ruling that said the state Board of Election Commissioners exceeded its authority when it issued emergency rules concerning how absentee ballots should be handled under the law.

Act 595 of 2013, which took effect Jan. 1, requires Arkansas voters to show photo identification at the polls. Pulaski County Circuit Judge Tim Fox ruled April 24 that the law is unconstitutional because it imposes qualifications for voting that go beyond the qualifications set forth in the Arkansas Constitution. The ruling was stayed pending an appeal.

Fox issued the ruling in a lawsuit the Pulaski County Election Commission filed. The lawsuit challenged rules the state Board of Election Commissioners issued concerning absentee ballots, not the constitutionality of Act 595, but Fox said that in order to review the rules he had to review Act 595, and in doing so he found that it violated the state constitution.

In a separate lawsuit brought by voters who challenged the constitutionality of Act 595, Fox on May 2 ruled again that the law is unconstitutional. He also stayed the ruling pending an appeal, so the law has remained in effect.

The Supreme Court on Wednesday considered only Fox’s April 24 ruling. In a 5-2 decision, it said the issue of the constitutionality of Act 595 “was neither raised nor developed by any of the parties before the circuit court.”

“We vacate in part the circuit court’s grant of summary judgment on the basis that Act 595 is unconstitutional, as that issue was not properly before the circuit court in the instant case,” Justice Paul Danielson wrote in the court’s majority opinion.

The Supreme Court did not say whether Act 595 is constitutional.

The high court said Fox did not err in striking down the rules the state Board of Election Commissioners adopted, however, because “by promulgating the emergency rules that it did, the ASBEC was legislating.”

The board’s rules stated that if an absentee voter submits a ballot without any of the forms of identification required under Act 595, the ballot should be treated as a provisional ballot and the voter should be given until noon on the Monday after the election to submit ID so the ballot can be counted.

Act 595 provides such a “cure period” for voters who fail to show photo ID at the polls, but it does not explicitly address the issue of absentee ballots that are submitted without identification.

“Had the Legislature intended to extend the same remedy to absentee voters, it could have expressly provided; yet, it did not,” Danielson wrote in the Supreme Court’s majority opinion Thursday.

Justice Karen Baker wrote in a dissenting opinion that the majority concluded Fox had “reached the right result, although for the wrong reason,” but she said Fox’s ruling would have allowed all absentee ballots to be counted, whereas the Supreme Court’s majority decision will allow only absentee ballots that are presented with proper identification to be counted.

“The majority’s analysis is actually that the circuit court reached the right ruling, rather than the right result,” Baker wrote, saying she would have sent the case back to circuit court for new proceedings.

Justice Josephine Hart joined in the dissent.

Aaron Sadler, a spokesman for state Attorney General Dustin McDaniel, said Wednesday, “We respect the court’s decision.”

Laura Labay, spokeswoman for Secretary of State Mark Martin, chairman of the state Board of Election Commissioners, said, “We will follow the court’s ruling.”

Leonard Boyle, chairman of the Pulaski County Election Commission, said he was happy with the ruling. He said he was not happy that in-person and absentee voters would be treated differently, but he said the state Board of Election Commissioners did not have authority to rewrite the law.

“It needed to have gone back to the Legislature,” Boyle said.

State Republican Party Chairman Doyle Webb, an intervenor in the lawsuit, said in a statement, “Unfortunately, the Supreme Court has ruled against absentee voters and we will now seek a legislative remedy so all votes will count. We are pleased that the Supreme Court did not overturn the requirements of the Voter ID bill and we look forward to further protecting the integrity of the ballot box.”

Act 595 was supported by Republicans in the Legislature and largely opposed by Democrats. Democratic Gov. Mike Beebe vetoed the legislation, but the Republican-controlled Legislature overrode the veto.

Early voting began May 5 for the May 20 primary and nonpartisan election.